加拿大华人论坛 加拿大留学移民美国投资移民 - 美国证券交易委员会和USCIS对涉及EB-5的法律问题的讨论概述

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Summary of SEC/USCIS Inter-Agency Engagement on the EB-5 Program on Wednesday (4/3), the SEC and U.S. Citizenship and Immigration Services (USCIS) hosted an inter-agency engagement on the EB-5 Program. IIUSA welcomed this joint engagement and has been encouraging this for a number of years now. Before getting into a detailed summary, the overarching theme was clear: there are a myriad of securities laws that apply to EB-5 related investments and associated activities - some of which have exemptions and exclusions depending on the structures of the investment and management - but there is no exemption to the anti-fraud rules that are fundamental to U.S. securities laws. On the call from USCIS was Mary Herrmann from the Customer Service and Public Engagement Directorate and Robert Silvers, Special Counsel to Director Alejandro Mayorkas. From the SEC, there were representatives from the following divisions:Division of Corporation FinanceDivision of Trading & MarketsDivision of Investment ManagementDivision of EnforcementAfter a brief introduction by USCIS, a SEC representative from the Division of Corporation Finance discussed the common exemptions to registering EB-5 securities offerings with the SEC, namely: Regulation D and Regulation S. Regulation D prohibits general solicitation of securities to those that the offeror does not have a pre-existing relationship with and requires solicitation occur only to accredited investors. The SEC has proposed new rules that will relax these standards, based on the JOBS Act passed last year, but the new regulation have not yet been finalized and implemented. Regulation S applies to when all sales activities for the offering occur offshore and the buy order by the investor is placed offshore. The next presentation was by the Division of Trading & Markets which is primarily responsible for administering the Securities Exchange Act of 1934. Within the context of EB-5 investments, this Division of the SEC is focused on individuals involved in the sale and offering of investments, or Broker-Dealers. Certain activities were identified as triggering the need to register as a Broker-Dealer: (1) if the person is directly soliciting an investment offering to investors; or, (2) if the person is indirectly advertising the investment with compensation of the individual based on the number of investors they subscribe to the offering. The only exception to registration discussed was for people associated directly with the issuer. The third presentation was by the Division of Investment Management, which administers the Investment Advisers Act and Investment Company Act. Depending on how EB-5 investments are structured, it was made clear that a trigger to register under one of those acts was possible. Investment companies tend to apply to mutual funds that pool investor capital into a diversified securities portfolio. Investment advisers are those that provide investment advice to investors for compensation (which unlike broker-dealers do not get compensated by the securities offeror). Each of the Divisions detailed above cover different areas of regulation that encompass most investment structures and related activities in one way or another. A couple of exclusions for registration were discussed, including the Professional Exclusion - which includes attorneys, accountants, and teachers - so long as any advice they provide is "incidental" to the professional services they regularly perform. Public sector entities/instruments also have an exclusion from registration. Lastly, the Division of Enforcement spoke about the need to pay close attention, and hire competent legal counsel, to all of the statues and regulations that had been brought up during the engagement. Furthermore, the Division representative spoke about the SEC enforcement action against A Chicago Convention Center ("ACCC"), et. al. as an example of alleged fraud perpetrated by a Regional Center on foreign investors, specifically citing the representations made by ACCC about job creation projections, the likelihood of investors obtaining U.S. citizenship, partnerships with name-brand hotels, and more. There were not any bright lines offered by the SEC in the engagement, including during Q & A about what is and is not permitted under securities laws because the Commission bases its actions on an analysis of the totality of the circumstances. One thing is clear, the EB-5 Regional Center industry has grown to a point where it is considered a tangible part of the U.S. capital market. Hence the willingness of the SEC to utilize resources to protect the integrity of the Program. IIUSA welcomes this development and will work hard to educate the Commission about the industry and the marketplace to advocate proper compliance. Stay tuned for more educational resources and events on these issues! **By no means should the above summary be construed as legal advice. Consult your own professional securities counsel for guidance on any and all of the issues raised on the call. There are many IIUSA member securities attorneys that would be happy to help.**​

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回复: 美国证券交易委员会和USCIS对涉及EB-5的法律问题的讨论概述说说中心思想.谢谢

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回复: 美国证券交易委员会和USCIS对涉及EB-5的法律问题的讨论概述Summary of SEC/USCIS Inter-Agency Engagement on the EB-5 Program on Wednesday (4/3), the SEC and U.S. Citizenship and Immigration Services (USCIS) hosted an inter-agency engagement on the EB-5 Program. IIUSA welcomed this joint engagement and has been encouraging this for a number of years now. Before getting into a detailed summary, the overarching theme was clear: there are a myriad of securities laws that apply to EB-5 related investments and associated activities - some of which have exemptions and exclusions depending on the structures of the investment and management - but there is no exemption to the anti-fraud rules that are fundamental to U.S. securities laws. On the call from USCIS was Mary Herrmann from the Customer Service and Public Engagement Directorate and Robert Silvers, Special Counsel to Director Alejandro Mayorkas. From the SEC, there were representatives from the following divisions:Division of Corporation FinanceDivision of Trading & MarketsDivision of Investment ManagementDivision of EnforcementAfter a brief introduction by USCIS, a SEC representative from the Division of Corporation Finance discussed the common exemptions to registering EB-5 securities offerings with the SEC, namely: Regulation D and Regulation S. Regulation D prohibits general solicitation of securities to those that the offeror does not have a pre-existing relationship with and requires solicitation occur only to accredited investors. The SEC has proposed new rules that will relax these standards, based on the JOBS Act passed last year, but the new regulation have not yet been finalized and implemented. Regulation S applies to when all sales activities for the offering occur offshore and the buy order by the investor is placed offshore. The next presentation was by the Division of Trading & Markets which is primarily responsible for administering the Securities Exchange Act of 1934. Within the context of EB-5 investments, this Division of the SEC is focused on individuals involved in the sale and offering of investments, or Broker-Dealers. Certain activities were identified as triggering the need to register as a Broker-Dealer: (1) if the person is directly soliciting an investment offering to investors; or, (2) if the person is indirectly advertising the investment with compensation of the individual based on the number of investors they subscribe to the offering. The only exception to registration discussed was for people associated directly with the issuer. The third presentation was by the Division of Investment Management, which administers the Investment Advisers Act and Investment Company Act. Depending on how EB-5 investments are structured, it was made clear that a trigger to register under one of those acts was possible. Investment companies tend to apply to mutual funds that pool investor capital into a diversified securities portfolio. Investment advisers are those that provide investment advice to investors for compensation (which unlike broker-dealers do not get compensated by the securities offeror). Each of the Divisions detailed above cover different areas of regulation that encompass most investment structures and related activities in one way or another. A couple of exclusions for registration were discussed, including the Professional Exclusion - which includes attorneys, accountants, and teachers - so long as any advice they provide is "incidental" to the professional services they regularly perform. Public sector entities/instruments also have an exclusion from registration. Lastly, the Division of Enforcement spoke about the need to pay close attention, and hire competent legal counsel, to all of the statues and regulations that had been brought up during the engagement. Furthermore, the Division representative spoke about the SEC enforcement action against A Chicago Convention Center ("ACCC"), et. al. as an example of alleged fraud perpetrated by a Regional Center on foreign investors, specifically citing the representations made by ACCC about job creation projections, the likelihood of investors obtaining U.S. citizenship, partnerships with name-brand hotels, and more. There were not any bright lines offered by the SEC in the engagement, including during Q & A about what is and is not permitted under securities laws because the Commission bases its actions on an analysis of the totality of the circumstances. One thing is clear, the EB-5 Regional Center industry has grown to a point where it is considered a tangible part of the U.S. capital market. Hence the willingness of the SEC to utilize resources to protect the integrity of the Program. IIUSA welcomes this development and will work hard to educate the Commission about the industry and the marketplace to advocate proper compliance. Stay tuned for more educational resources and events on these issues! **By no means should the above summary be construed as legal advice. Consult your own professional securities counsel for guidance on any and all of the issues raised on the call. There are many IIUSA member securities attorneys that would be happy to help.**​点击展开...最近一次的移民局EB-5会议邀请了美国证 监 会SEC 相关人员讲解EB-5项目推广中的证券法问题。但此次美国移民局和美国证 监 会对一些实际案例的联合审查，是否意味着已经可以确定，从SEC的角度来看，EB-5项目目前一些实贱做法是有问题的？对此会议拒绝表态。会议开场，先是由证 监会不同部门的几位官员做了关于证券法律的解释，随之便开始回答听众们的问题。其中问得最多的是关于招募费(finder's fee)、代理与证券从业人员的区别（broker/dealer）、投资公司的定义、向不特定的潜在投资人做市场宣传（general solicitation）的问题、芝加哥项目证券诉讼、海外召集投资人是否可以免除证券法的相关义务这些非常现实的问题展开。在提问环节，SEC官员态度是比较官方的。首先，他们不提供任何法律建议，不指导开发商应该怎么做，而是一再要求大家自己研读法条，自己找证券法律师做咨询。其次，尽量避免回答包含具体事实假设的问题，官方的口径就是以法律为准绳，以具体个案事实为判断依据。尽管如此，SEC官员还是清楚地向大众传达了一个信息：证 监 会 来 了！EB-5项目宣传不能违反证券法的要求，广大开发商、中介、律师需要开始注意他们的行为是否触犯了证券法。然而，这对广大中国投资人来讲绝对是一个好的消息，因为证券法的宗旨就是信息披露透明。一个透明的EB-5市场肯定会更有利于投资人保护自己的利益，淘汰市场上不良的项目，净化整个EB-5市场！

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